Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
Per Chandra Poojari, Accountant Member These appeals by the assessee are against the common order of the CIT(Appeals) dated 07.06.2019 of the CIT(Appeals)-11, Bengaluru for the assessment years 2012-13 & 2014-15.
The assessee has raised common grounds of appeal in these appeals with only change in figures and the grounds for the AY 2012-13 are as follows:-
“1. The orders of the authorities below in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
2. The order of the learned CIT[A] is void-ab-initio and bad in law as the same is passed on erroneous appreciation of facts and law and further, in violation of the principles of natural justice warranting it to be cancelled as void-ab-initio.
The learned CIT[A] is not justified in dismissing the appeal in-limine on the ground that the tax on the income returned in the return filed in response to notice u/s.153C of the act, was not paid and therefore, the appeal is not maintainable u/s.249[4] of the Act, under the facts and in the circumstances of the appellant's case overlooking the fact the return so filed is treated as non-est and there is no obligation to pay any tax uls.140A of the Act, attracting the disqualification u/s.249[4] of the Act. 3.1 The learned CIT[A] failed to appreciate that the return filed by the appellant in response to notice u/s.153C of the Act, itself was bad in law as there was no incriminating material found during the course of search warranting issuance of notice uls.153C of the Act, by the learned A.O. under the facts and in the circumstances of the appellant's case. 3.2 The learned CIT[A] failed to appreciate that the learned A.O. himself treated the return filed by the appellant in response to notice u/s.153C of the Act, as non-est in law and consequently, no tax is payable u/s.140A of the Act to warrant attraction of section 249[4] of the Act, the learned CIT[A] is not justified in dismissing the appeal in-limine for non-payment of tax on the returned income in terms of section 249[4] of the Act, under the facts and in the circumstances of the appellant's case. 4. Without prejudice to the above, the invocation of jurisdiction u/s.153C of the Act, is bad in law although the documents discovered during the course of search and seized pertain to the appellant for computation of total income, the appellant had disclosed the income and there was not any incriminating materials pointing out any undisclosed income and consequently, the assumption of jurisdiction u/s.153C of the Act, is bad in law for the assessment year under appeal having regard to the ratio of the decision of the Hon'ble jurisdictional High Court in the case of IBC KNOWLEDGE PARK P. LTD., reported in 385 ITR 346 [Kar].
Without prejudice to the above, the learned CIT[A] is not justified in upholding the completion of the assessment u/s.144 of the Act under the facts and in the circumstances of the appellant's case, in as much as, the appellant's husband was appearing before the learned A.O. only to submit and emphasis again and again that the A.O. did not have jurisdiction to make any assessment and consistent with such pleading perhaps he did not give the required details to the learned A.O. lest should not say that the participation cured the fatal defect.
Without prejudice to the above, the learned CIT[A] is not justified in not disposing of the following additions under the facts and in the circumstances of the appellant's case : [1] Capital gains on sale of flats Rs. 20,00,000/- [2] Short term capital gains on sale of flats Rs. 82,61,925/- [3] Long term capital gains on sale of flats Rs. 18,61,075/- [4] Unexplained deposit in bank accounts Rs. 1,27,01,041/- [5] Unconfirmed credit in the bank accounts Rs. 2,25,92,940/- [6] Unexplained cash deposits Rs. 4,49,500/- 7. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s. 234A, 234B and 234C of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 8. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.” 3. We have heard both the parties and perused the material on record. At the time of hearing, it was brought to our notice that the CIT(A) has passed ex parte order in these assessment years without giving opportunity of being heard to the assessee. Further it is submitted that as
per the return of income, the assessee has duly paid the admitted tax shown in the return filed by the assessee also Form 26AS of the respective assessment years. According to the ld. AR, there is no non-payment of admitted tax and he sought an opportunity to present the case before the CIT(Appeals). We accede to the request of the ld. AR. Admittedly, in this case, order was passed by the CIT(Appeals) ex parte without giving due opportunity of hearing to the assessee. Further, the CIT(A) has not gone through the details of payment of admitted tax which is required to be verified by him after giving opportunity of hearing to the assessee in both the assessment years. Accordingly, these appeals are remitted back to the file of the CIT(Appeals) for de novo consideration of the issues after providing opportunity of being heard to the assessee.
In the result, both the appeals are allowed for statistical purposes.
Pronounced in the open court on this 22nd day of July, 2021.